Com. v. Cruz, J., Jr.

J. S71010/14 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JAMES R. CRUZ, JR., : No. 384 MDA 2014 : Appellant : Appeal from the PCRA Order, February 4, 2014, in the Court of Common Pleas of Centre County Criminal Division at No. CP-14-CR-0001246-1993 BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 05, 2015 Appellant appeals the order dismissing his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Finding no error, we affirm. Appellant was charged with the kidnapping, rape, murder, and other offenses in connection with the March 22 to 24, 1993 murder of a young woman whose body was found near an on-ramp to State Route 26 in Centre County. On June 15, 1994, a jury found appellant guilty of first degree murder and theft, but acquitted him of the other charges. Immediately thereafter, appellant was sentenced to life imprisonment. On December 22, 1995, this court affirmed the judgment of sentence, and on June 26, 1996, our supreme court denied appeal. Commonwealth v. Cruz, 674 A.2d 313 (Pa.Super. 1995) (unpublished memorandum), * Former Justice specially assigned to the Superior Court. J. S71010/14 appeal denied, 678 A.2d 364 (Pa. 1996). On March 18, 1997, appellant filed the present PCRA petition pro se. Attorney Robert Bascom was appointed to represent appellant, but thereafter took no further action. 1 Appellant’s petition languished for the next 15 years until, for unstated reasons, it came to the court’s attention. On July 30, 2012, the court appointed new counsel. An amended PCRA petition was filed on June 10, 2013. On October 18, 2013, the Commonwealth filed a motion to dismiss appellant’s petition pursuant to 42 Pa.C.S.A. § 9543(b), which permits the court to dismiss a petition where the Commonwealth would be prejudiced in its ability to re-try the petitioner. A hearing was held on October 31, 2013. On December 10, 2013, appellant petitioned to supplement the record with the testimony of Attorney Bascom. The petition was denied January 16, 2014. On February 4, 2014, the PCRA court dismissed appellant’s petition on the bases that he had abandoned his PCRA effort and that the Commonwealth would be prejudiced in re-trying appellant. This appeal followed. Appellant raises the following issues on appeal: I. DID THE PCRA COURT COMMIT LEGAL ERROR IN DISMISSING DEFENDANT’S POST- CONVICTION COLLATERAL RELIEF PETITION 1 According to a Petition to Supplement the Record, filed 12/10/13, shortly after his appointment, Attorney Bascom had a conference with the PCRA court at which he informed the court that his appointment was beyond his area of expertise. Attorney Bascom was thereafter under the impression that he was relieved of his assignment; however, no order was ever entered permitting him to withdraw. -2- J. S71010/14 AND AMENDED POST-CONVICTION COLLATERAL RELIEF PETITION? A. DID THE PCRA COURT ERR IN FINDING THAT DEFENDANT ABANDONED HIS POST- CONVICTION COLLATERAL RELIEF PETITION? B. DID THE PCRA COURT ERR IN FINDING THAT THE COMMONWEALTH WAS PREJUDICED AS A RESULT OF THE DELAY FROM THE TIME OF THE FILING OF THE PETITION TO THE DATE OF THE HEARING ON THE COMMONWEALTH’S MOTION TO DISMISS? II. DID THE PCRA COURT ERR IN DISMISSING DEFENDANT’S PETITION TO SUPPLEMENT THE RECORD? Appellant’s brief at 4. We find no error with the trial court’s holding. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the trial court, it is our determination that there is no merit to the questions raised on appeal. The trial court’s thorough, six-page opinion, filed on February 4, 2014, comprehensively discusses and properly disposes of the questions presented at I.A. and I.B. The court’s Rule 1925(a) opinion, filed March 18, 2014, properly disposes of the issue -3- J. S71010/14 listed at II.2 We will adopt those opinions as our own and affirm on their bases. Orders affirmed. Panella, J. joins the Memorandum. Fitzgerald, J. notes dissent. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 3/5/2015 2 42 Pa.R.A.P., Rule 1925(a), 42 Pa.C.S.A. -4- Circulated 02/18/2015 12:38 PM Circulated 02/18/2015 12:38 PM Circulated 02/18/2015 12:38 PM Circulated 02/18/2015 12:38 PM Circulated 02/18/2015 12:38 PM Circulated 02/18/2015 12:38 PM Circulated 02/18/2015 12:38 PM Circulated 02/18/2015 12:38 PM